United States District Court, M.D. Tennessee, Nashville Division
H. SHARP UNITED STATES DISTRICT JUDGE.
case that was transferred to the undersigned upon the
retirement of Judge Campbell, the Magistrate Judge has
entered a Report and Recommendation (“R & R”)
(Docket No. 940) in which she recommends that Defendant
Randall Parker's Motion to Return Seized Property (Docket
No. 933) be denied. The net effect of that decision is that
the Government lawfully moved for forfeiture of a $12, 000
gold diamond ring as substitute property. Defendant has filed
a “Memorandum of Law in Support of Petition In Response
to Entry of Preliminary Order of Substitute Asset to Satisfy
$10, 500, 000.00 Money Judgment” (Docket No. 949),
which the Court construes as objections to the R & R.
objections are without merit. He claims that at sentencing no
fine was levied and that, while a special assessment of $700
was imposed, no monthly, weekly, or quarterly payments were
required to be withdrawn from his inmate account. That may be
true, but, in accordance with the jury verdict which found
that Defendant should forfeit $10, 500, 00 on Count 25, and a
like amount on Count 26, Judge Campbell entered a Preliminary
Order of Forfeiture on January 29, 2004 that required
Plaintiff to forfeit a combined $21, 000, 000 in United
States currency or any other property as substitute assets.
Because the money judgment had not been satisfied, Judge
Campbell, on April 14, 2016, entered a second Preliminary
Order of Forfeiture of Substitute Asset (Docket No. 929) in
the form of the gold ring.
also claims that because Judge Campbell found him unable to
pay a fine at sentencing, this somehow indicates that the
Court did not intend to make him pay a money judgment via
forfeiture. However, that contention is belied by the fact
that Judge Campbell (1) stated in the Judgment that Defendant
was to forfeit $10, 500, 00 on each of Counts 25 and 26; and
(2) entered the initial Preliminary Order of Forfeiture in
accordance with the verdict of the jury. Moreover, the notion
“that a personal money judgment forfeiture may not be
entered against a defendant who has no assets at the time of
sentencing . . . has been specifically rejected by a
unanimous and growing consensus among the circuits.”
United States v. Hampton, 732 F.3d 687, 691
(6th Cir. 2013). This is hardly surprising since
the relevant forfeiture statute states that “a person
convicted of this subchapter . . . shall forfeit to the
United States, irrespective of any provision of state law -
(1) any property constituting, or derived from or any
proceeds the person obtained directly or indirectly, as the
result of such violation.” 21 U.S.C. § 851. Such
language indicates Congress intended forfeiture to be
mandatory. Hampton, 753 F.3d at 691 (collecting
also takes issue with the location of the ring and the timing
of events. He notes that the briefcase which contained the
ring was confiscated at the time of execution of the search
warrant, yet nothing more was said for many years and not
until long after the passing of a five-year statute of
limitations. He also asserts that the Government has never
established a nexus between the ring and the crimes for which
he was convicted.
short answer to all of these assertions is found in Rule 32.2
of the Federal Rules of Criminal Procedure. So far as
relevant, the Rule provides:
(e) Subsequently Located Property; Substitute Property.
(1) In General. On the government's motion, the court may
at any time enter an order of forfeiture or amend an existing
order of forfeiture to include property that:
(A) is subject to forfeiture under an existing order of
forfeiture but was located and identified after that order
was entered; or
(B) is substitute property that qualifies for forfeiture
under an applicable statute.
Fed. R. Crim. P. 32.1(e). Thus, the Government may move to
substitute property in an existing forfeiture order at any
time. See United States v. Duboc, 694 F.3d 1223,
1228 (11th Cir. 2012) (“[N]o provision of 21
U.S.C. § 853 or the Federal Rules of Criminal Procedure
otherwise limits the time during which the government may
move to amend an existing criminal forfeiture order to seize
property subject to forfeiture under § 853”);
United States v. Baker, 227 F.3d 955, 970
(7th Cir. 2000) (stating that a criminal
forfeiture order has the “effect of plac[ing] a
judgment lien against [defendant] for the balance of his
prison term and beyond”).
according to the Government, the ring was not discovered
until IRS agents were clearing out a storage room and found
the briefcase with the ring secreted in an inside pocket.
Furthermore, while 21 U.S.C. § 853(a) identifies
property subject to criminal forfeiture (e.g.
property derived from a crime, or used to facilitate a
crime), the statute also includes a provision for substitute
property consisting of “any other property of the
defendant, up to the value of” the money judgment
imposed, id. §853(p)(2).
the R & R (Docket No.940) is hereby ACCEPTED and APPROVED
and Defendant's Memorandum of Law (Docket No. 949)
construed as objection thereto is hereby OVERRULED.
Defendant's Motion to Return Seized Property (Docket No.
933) is DENIED. Finally, Defendant's Motion for
Clarification (Docket No. 938) which asks Judge Campbell to
clarify whether he left Defendant's fine and forfeiture
“close[d]” or “open, ” and asks Judge